Alsager v. Peterson, 141 N.W. 391

Alsager v. Peterson

141 N.W. 391 | S.D. | 1913

WPIITING, P. J.,

Plaintiff and defendant owned farms which adjoined one another. Upon defendant’s farm there were two or three low places, and, for the purpose -of draining the water therefrom, he had dug a ditch -Which conducted the water through a rise of land into a slough partly on defendant’s and parti}1- on plaintiff’s farm. Plaintiff brought this action -seeking an injunction restraining defendant from continuing the maintenance of such ditch; plaintiff -claiming that the same caused an unusual discharge of surface water upon his land, to its injury and his damage. It appears that triad was had before the court without a jury; that findings of fact and conclusions of law were made and entered in -favor of defendant; that a judgment was -entered there*456on; and that a motion for new trial was denied. Plaintiff has appealed from such judgment and from the order denying a new-trial.

Appellant contends that the trial court erred in admitting evidence showing that the ditch 'and the slough upon his land were both dry at the time of the trial; and he also contends that the evidence was insufficient to support a finding made to- the effect that, at the time of the trial and for several months prior thereto, there had 'been no water whatever in the sloughs or depressions on respondent’s land and no -water .running through the ditch dug by respondent. 'Ap examination of appellant’s brief reveals the fact that appellant’s real contention is that the action should stand or fall upon the facts as they existed at the time it was brought, and that the condition existing at the time said action was brought was all that was material; that any finding as to the conditions existing at the time of trial was immaterial, even if there had been sufficient evidence to support such finding. There is nothing in the record, as presented to us,, to show 'but what -there were ample findings, supported by competent evidence, to support the denial of injunctional relief without regard to the evidence and finding complained of; for all that appears from- appellant’s brief, appellant may have failed to prove that the facts existing at the time suit was brought were such as, if continuing in nature, would have entitled him to relief asked.

[1] Appellant is clearly in error in his contention that the trial court had no right to receive .evidence as to the condition existing at the time of.the trial. . y

[2] The granting of injunctional relief rests within the discretion of the trial court, and, in the exercise of such discretion, -it is not only authorized, 'but it is its duty, to determine, not merely whether a party was entitled to an injunction at the time he instituted his action, but whether, under the facts as they appear at the time of the trial, such relief should be granted. j

[3] An injunction should only be granted where, under the facts proven; it appears reasonably certain that the granting thereof will protect the party seeking it from some injury that would result in his damage. It often happens that there is such a change in conditions between the commencement of an action and the time of trial as to present to the court a situation entirely different from *457the one complained of. It might well be that the accumulated water standing' in a lake or pond, if discharged upon certain land, might cause great injury to such land and would fully justify a court in restraining such discharge of water, yet, if, pending a trial, such water should all be discharged upon such land, and the court, upon the trial, should find that in the future, owing to the ■conditions as' they would apparently be, there would not be any further injury, such court would be fully justified in refusing 'an injunction, although it might be its duty to retain the case for the purpose of adjudging the amount of damages that had been suffered, or, at least, for the purpose of rendering judgment for costs against the wrongdoer. In the case at bar, it may, for aught that the record shows, be that appellant established the fact that he was damaged by the discharge of the waters that had accumulated in the low places and were thrown upon his land when the ditch was opened up, and yet the court have been fully satisfied from the evidence that there could riot be, under all the surrounding conditions, any further damage resulting from the direct discharge of surface waters where they were not given an opportunity to accumulate and be discharged in a large body.

As was well said by the Supreme Court of Iowa in the case of Redley v. Greiner et al., 117 Iowa, 679, 91 N. W. 1033: ‘■‘A court of equity may be required by statute to issue an injunction when certain facts are proven; but, the purpose of the writ being to prevent the continuance of a nuisance or wrong,, it is evident that, if it is clearly apparent.to the court that there will not and cannot be a continuance thereof, it is entirely proper to refuse the writ.”

[4] That the relief which the court should grant is dependent upon present and future conditions rather than solely upon those existing when suit was brought is sustained by the following authorities: People v. Grand Rapids, etc., Co., 67 Mich. 5, 34 N. W. 250; Lewis v. North Kingstown, 16 R. I. 15, 11 Atl. 173, 27 Am. St. Rep. 724; Langmaid et al. v. Reed et al., 159 Mass. 409, 34 N. E. 593; Reynolds et al. v. Everett et al., 144. N. Y. 189, 39 N. E. 72. The principle underlying these cases was recognized by this court in the case of C. M. & St. P. Ry. Co., v. Commissioners, etc., 28 S. D. 471, 134 N. W. 46.

*458The record upon appeal presenting no reversible error, the judgment and order appealed from are affirmed.